Welch-Philippino, et al. v. Zoning Board of Appeals of Newburyport, et al. (Lawyers Weekly No. 11-111-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1586 Appeals Court CYNTHIA WELCH-PHILIPPINO & another[1] vs. ZONING BOARD OF APPEALS OF NEWBURYPORT & others.[2] No. 13-P-1586. Suffolk. June 2, 2014. – September 9, 2014. Present: Grasso, Vuono, & Rubin, JJ. Zoning, Nonconforming use or structure, Special permit, By-law. Civil action commenced in the Land Court Department on April 7, 2011. The case was heard by Alexander H. Sands, III, J. Kevin W. Lawless for the plaintiff. Ryan P. McManus (Diane C. Tillotson with him) for Port Associates Limited Partnership & another. GRASSO, J. Cynthia Welch-Philippino (Philippino) appeals from a Land Court judgment determining that the planned reconstruction of a nursing home (the project) by Port Associates Limited Partnership and Whittier Health Network, Inc. (the defendants), is permissible as of right under G. L. c. 40A, § 6. Philippino principally challenges the trial judge’s ruling that a dimensionally conforming commercial structure is not, by virtue of its employment for a nonconforming use, a nonconforming structure for purposes of the first sentence of G. L. c. 40A, § 6, first par. We conclude, as did the trial judge, that where the project does not work a “change or substantial extension” (ibid.) of the preexisting nonconforming commercial use, the reconstruction and replacement of the existing dimensionally conforming structure with a new dimensionally conforming structure is lawful as a matter of right and not subject to the second sentence of G. L. c. 40A, § 6, which provides that preexisting nonconforming structures or uses may only be extended or altered by special permit. 1. Background. The defendants’ 100-bed nursing home facility, built in 1968, is a dimensionally conforming commercial structure situated on a large (5.5 acre) conforming lot in a residential zone. Use of the facility as a nursing home pre-dates the adoption of the Newburyport zoning ordinance, and thus is a lawful preexisting nonconforming use. The defendants plan to replace the old structure with a modernized 121-bed facility that will meet the dimensional requirements of the current zoning ordinance. The Newburyport zoning board of appeals (board) issued a special permit that authorized the defendants to proceed with the project, and abutters Philippino and her husband appealed under G. L. c. 40A, § 17. After trial, a Land Court judge concluded that the project (1) does not constitute a “change or substantial extension” of the lawful preexisting nonconforming commercial use, and (2) is therefore permissible […]
Categories: News Tags: 1111114, Appeals, Board, Lawyers, Newburyport, Weekly, WelchPhilippino, Zoning
Commonwealth v. Letkowski (Lawyers Weekly No. 10-157-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11556 COMMONWEALTH vs. MIKOLAJ K. LETKOWSKI. Hampden. April 10, 2014. – September 9, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Kidnapping. Rape. Robbery. Assault and Battery by Means of a Dangerous Weapon. Intimidation of Witness. Witness, Intimidation. Constitutional Law, Admissions and confessions, Voluntariness of statement. Evidence, Admissions and confessions, Voluntariness of statement. Practice, Criminal, Admissions and confessions, Voluntariness of confession, Argument by prosecutor. Indictments found and returned in the Superior Court Department on June 8, 2006. A pretrial motion to suppress evidence was heard by Peter A. Velis, J., and the cases were tried before Daniel A. Ford, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Charles W. Rankin (Kerry A. Haberlin with him) for the defendant. Bethany C. Lynch, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. After a jury trial, the defendant, Mikolaj Letkowski, was convicted of aggravated kidnapping, aggravated rape, armed robbery, assault and battery by means of a dangerous weapon, and intimidation of a witness. The defendant appealed, and the Appeals Court affirmed the convictions. Commonwealth v. Letkowski, 83 Mass. App. Ct. 847 (2013). We granted the defendant’s application for further appellate review, limited to issues concerning the prosecutor’s references to the defendant’s invocation of his rights as set forth in Miranda v. Arizona, 384 U.S. 436, 444-445 (1966), at trial. We conclude that the prosecutor’s references to the defendant’s invocation of his Miranda rights were improper. We conclude also, however, that in the particular circumstances of this case, the improper references, which were not objected to at trial, did not raise a substantial risk of a miscarriage of justice. We affirm the defendant’s convictions. 1. Background. a. Facts. The jury could have found the following. At approximately 11:30 P.M. on April 17, 2006, the victim, a student at a college in Springfield, drove from her off-campus job and entered the parking lot of her campus dormitory. When she pulled into the parking lot, she noticed the defendant walking on the sidewalk near one of the dormitories. The victim parked her car. While she was collecting her belongings from it, the defendant approached her and asked whether she knew where a set of nearby dormitories was located. After answering […]
Commonwealth v. Sullivan (Lawyers Weekly No. 10-156-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11568 COMMONWEALTH vs. JOSEPH D. SULLIVAN. Middlesex. May 6, 2014. – September 9, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ.[1] Attempt. Kidnapping. Idle and Disorderly Person. Practice, Criminal, Assistance of counsel. Indictments found and returned in the Superior Court Department on November 27, 2007. The cases were tried before Hiller B. Zobel, J.; motions for a new trial and to vacate a conviction, filed on November 2, 2010, were considered by Sandra L. Hamlin, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Kevin J. Curtin, Assistant District Attorney (Nicole L. Allain, Assistant District Attorney, with him) for the Commonwealth. Dennis A. Shedd for the defendant. Timothy St. Lawrence, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. SPINA, J. Following a jury trial in the Superior Court in December, 2008, the defendant, Joseph D. Sullivan, was convicted of attempted kidnapping, G. L. c. 274, § 6, and of accosting or annoying a person of the opposite sex, G. L. c. 272, § 53.[2] He was sentenced to from three to five years in the State prison on his conviction of attempted kidnapping, and he was sentenced to three years’ probation on his conviction of accosting or annoying a person of the opposite sex, to commence on and after the attempted kidnapping sentence. On appeal, the defendant argued that (1) the Commonwealth failed to present sufficient evidence to prove every element of the charged crimes beyond a reasonable doubt;[3] (2) his motion to vacate the attempted kidnapping conviction was wrongly denied; and (3) his counsel provided ineffective assistance during the course of the trial.[4] The Appeals Court affirmed the judgment on the indictment charging attempted kidnapping, concluding that the Commonwealth had proved all of the required elements of the offense. Commonwealth v. Sullivan, 84 Mass. App. Ct. 26, 28-30, 32 (2013). On the indictment charging accosting or annoying a person of the opposite sex, the Appeals Court reversed the judgment, set aside the verdict, and entered judgment for the defendant. Id. at 30-32. It concluded that because the Commonwealth had not demonstrated that the defendant’s conduct involved “sexually explicit language or acts,” the Commonwealth failed to meet its burden of proving that the defendant’s […]
Plumb, et al. v. Casey (Lawyers Weekly No. 10-155-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11519 EVE PLUMB & others[1] vs. DEBORA A. CASEY, trustee.[2] Suffolk. April 8, 2014. – September 8, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[3] Art. Consignment. Certification of a question of law to the Supreme Judicial Court by the United States Bankruptcy Court for the District of Massachusetts. Andrew Z. Schwartz (Joshua S. Pemstein with him) for the plaintiffs. Kathleen R. Cruickshank for the defendant. Steven B. Levine, Nicolas M. Dunn, William D. Currie, & Jessica T. Lu, for Arts & Business Council of Greater Boston & another, amici curiae, submitted a brief. DUFFLY, J. The consignment of fine art is governed by G. L. c. 104A, which provides that, upon delivery of a work of fine art to a consignee, the consignor shall provide a written statement with specified information about the work.[4] See G. L. c. 104A, § 2 (b). A judge of the United States Bankruptcy Court for the District of Massachusetts has certified the following question pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981), concerning the effect of a consignor’s failure to deliver a written statement as required by G. L. c. 104A, § 2 (b): “Under Mass. Gen. Laws. c. 104A, the Massachusetts fine art consignment statute (‘Chapter 104A’), must a consignor transmit a written ‘statement of delivery’ to a consignee as a necessary prerequisite to the formation of a ‘consignment’; or, alternatively, under Chapter 104A does a consignment arise upon the delivery by a consignor, and acceptance by a consignee, of a work of fine art for sale on consignment, regardless of whether a written ‘statement of delivery’ is sent by the consignor?” For the reasons we discuss, we answer, “No, a written statement of delivery is not a prerequisite for the formation of a consignment under G. L. c. 104A.” Background. We summarize certain undisputed facts in the order of certification and in the record before us. Kenneth Wynne, III, and Allison Wynne (the Wynnes) owned and operated Wynne Fine Art, Inc. (Wynne Gallery), in Chatham. Wynne Gallery accepted art works that the creditor artists delivered to the gallery, and agreed to sell the art works and pay fifty per cent of the proceeds to the creditor artists. In 2013, the Wynnes filed for personal bankruptcy under Chapter 7 of the United […]
Commonwealth v. Gonzalez (Lawyers Weekly No. 11-109-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11-P-1912 Appeals Court COMMONWEALTH vs. LUIS GONZALEZ. No. 11-P-1912. Essex. January 15, 2014. – September 5, 2014. Present: Cypher, Rubin, & Hines, JJ.[1] Jury and Jurors. Practice, Criminal, Jury and jurors, Deliberation of jury, Question by jury, Voir dire. Constitutional Law, Delay in appeal. Robbery. Intimidation of Witness. Indictments found and returned in the Superior Court Department on May 31, 2006. The cases were tried before David Lowy, J., and a motion for postconviction relief, filed on April 5, 2013, was heard by him. Sharon Fray-Witzer for the defendant. Marcia H. Slingerland, Assistant District Attorney, for the Commonwealth. RUBIN, J. Background. The defendant was convicted after a jury trial of armed carjacking, armed robbery, and intimidation of a witness. See G. L. c. 265, §§ 21A, 17; G. L. c. 268, § 13B. This is his direct appeal. During deliberations, the jurors sent the judge a question which read: ”It has come to the group’s attention that one juror fell asleep during the presentation of evidence and is not willing to accept others’ recollection of what was missed. Is this grounds to have the juror dismissed?” Although the prosecutor sought a voir dire, the judge declined to conduct one. He reasoned, “[I]f I were to voir dire this issue the only way to voir dire it would be to ask questions that get into the deliberative process.” The judge did say that he had “looked at the jury numerous times.” And, apparently assuming he knew which juror the question referred to, he said, “Every time I looked over . . . he never had his eyes shut for a significant period of time. And every time I looked at him it seemed that he was alert [and] paying attention . . . . I made a decision every time I looked over that he didn’t seem to me to be asleep. I gave it serious [consideration] numerous times.” A subsequent jury question read, “We have a juror (#1) who seems to be biased towards police in general. He laughs every time the word police even comes up and refuses to even contemplate a witness’s testimony because he believes the police gave a deal. Is this grounds for an alternate juror to be used?” The judge seems to have concluded that the […]
Realty Finance Holdings, LLC v. KS Shiraz Manager, LLC, et al. (Lawyers Weekly No. 11-110-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-252 Appeals Court REALTY FINANCE HOLDINGS, LLC[1] vs. KS SHIRAZ MANAGER, LLC, & others.[2] No. 13-P-252. Suffolk. January 9, 2014. – September 5, 2014. Present: Katzmann, Fecteau, & Milkey, JJ. Contract, What constitutes, Condition precedent, Choice of law clause, Damages. Evidence, Parol evidence. Practice, Civil, Summary judgment. Damages, Breach of contract. Civil action commenced in the Superior Court Department on August 21, 2008. The case was heard by Charles T. Spurlock, J., on a motion for summary judgment; a hearing on the assessment of damages was had before Carol S. Ball, J., and entry of final judgment was ordered by her. Jeffrey P. Allen (Maria Galvagna Mesinger with him) for the defendants. Paul S. Samson for the plaintiff. KATZMANN, J. In this appeal, the parties dispute whether two thirty-eight page limited liability company agreements, negotiated and drafted with the assistance of counsel and each containing an integration clause, should be enforced as written. A Superior Court judge entered summary judgment for the plaintiff, ruling that the agreements were fully integrated contracts and that the parol evidence rule prohibited consideration of the parties’ negotiations to show that the agreements were subject to contingencies. A final judgment then entered awarding damages to the plaintiff. On appeal, the defendants argue that it was always understood that the agreements, though fully executed, were not to take effect until certain financing and property acquisitions were in place and that electronic mail message (e-mail) exchanges between the parties raise genuine issues of material fact whether integration was intended. The defendants further maintain that the plaintiff is not entitled to damages under the terms of the agreements. We affirm. 1. Facts. We take the undisputed facts from the judge’s February 1, 2010, “Memorandum and Order on the Plaintiff’s Motion for Summary Judgment on Liability” and from the parties’ statement of undisputed facts. We also add material from the record for purposes of background and discussion, as noted. During the relevant events of this case, the plaintiff was a Delaware limited liability company involved in real estate specialty finance.[3] The defendants are related Massachusetts entities involved in real estate acquisition and management. Kambiz Shahbazi is the principal of KS GS Manager, LLC; KS GS Equity Partners, LLC; KS Shiraz Manager, LLC; and KS Shiraz Equity Patners, LLC, the entities that […]
A.J. Properties, LLC v. Stanley Black and Decker, Inc. (Lawyers Weekly No. 10-154-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11424 A.J. PROPERTIES, LLC vs. STANLEY BLACK AND DECKER, INC. Suffolk. May 5, 2014. – September 5, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Assignment. Debt. Mortgage, Assignment. Contract, Assignment, Surety. Surety. Bond, Private building project, Construction and contract bond. Environment, Environmental cleanup costs. Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts on April 8, 2013. Gerard A. Butler, Jr. (Andrew D. Black with him) for the defendant. John A. Mavricos for the plaintiff. DUFFLY, J. At issue in this case is the right to payment under a performance bond issued to secure the obligation of an environmental consulting company to perform environmental remediation of a contaminated site that included land that had been owned by Stanley Black and Decker, Inc. (Stanley). In 2011, A.J. Properties, LLC (A.J. Properties), commenced the underlying action in the Superior Court, contending that it had acquired the rights to payment under the bond, and that Stanley had wrongfully collected payment. A.J. Properties argued that Stanley had assigned the rights to payment when it assigned a mortgage on the property to the Wyman–Gordon Company (Wyman-Gordon), which later assigned the mortgage to A.J. Properties. After Stanley removed the case to the United States District Court for the District of Massachusetts, a judge of that court certified the following question to this court pursuant to S.J.C. rule 1:03, as appearing in 382 Mass. 700 (1981): “Does the rule of Quaranto v. Silverman, 345 Mass. 423, 426–[427] (1963) [(Quaranto)], that ‘the assignment of a debt carries with it every remedy or security that is incidental to the subject matter of the assignment and could have been used or made available to the assignor,’ extend to a situation where a mortgage and a surety agreement secured an obligation, and both the mortgagor and the surety breached that obligation prior to a written assignment of the mortgage, does the assignee, by operation of law, acquire the right against the surety’s receiver for the surety’s breach of its obligation?” We answer that whether the right against the surety’s receiver is deemed assigned by operation of the rule of Quaranto, supra, depends on whether the right is an incident to […]
Commonwealth v. Coppinger (Lawyers Weekly No. 11-108-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-287 Appeals Court COMMONWEALTH vs. JOHN G. COPPINGER. No. 13-P-287. Plymouth. May 2, 2014. – September 4, 2014. Present: Trainor, Fecteau, & Carhart, JJ. Open and Gross Lewdness and Lascivious Behavior. Constitutional Law, Vagueness of statute. Evidence, Intent. Intent. Practice, Criminal, Instructions to jury, Request for jury instructions. Words, “Exposure.” Indictments found and returned in the Superior Court Department on June 3, 2011. The cases were tried before Robert C. Cosgrove, J. Brian A. Kelley for the defendant. Gail M. McKenna, Assistant District Attorney, for the Commonwealth. CARHART, J. After a jury trial, the defendant was found guilty of open and gross lewdness, in violation of G. L. c. 272, § 16, and of accosting a person of the opposite sex, in violation of G. L. c. 272, § 53. Appealing from his conviction of open and gross lewdness, he argues that the trial judge erred in denying his motion to dismiss, alleging that the statute prohibiting open and gross lewdness is unconstitutionally vague. The defendant also argues that the trial judge erred in denying his motion for a required finding of not guilty and in instructing the jury on a definition of the word “exposure.” We affirm. Background. The following facts are not in dispute. On April 5, 2011, the defendant entered a Target store in Kingston. On that occasion, he chose to wear white “see-through” compression shorts. On his way into the store, the defendant asked an employee whether it was “okay” to wear his shorts inside. Several Target employees testified to seeing the defendant’s buttocks and the “flesh color of his skin” through the shorts. One witness testified that she could “clearly” see that the defendant was not wearing underwear. Another witness described seeing the outline of the defendant’s “semi-erect” penis. On redirect, the witness stated that she saw a semi-erect penis through the shorts. The witness also testified that she saw the defendant’s testicles through the shorts. Various witnesses described their shock. A store employee notified the police. The police responded as the defendant was pulling on a pair of jeans over his compression shorts outside of the store. The defendant was arrested and charged. Prior to trial, the defendant filed a motion to dismiss, alleging that the statute prohibiting open and gross lewdness was unconstitutionally vague. That […]
Massachusetts Electric Company, et al. v. Department of Public Utilities (Lawyers Weekly No. 10-153-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11526 SJC-11527 SJC-11528 MASSACHUSETTS ELECTRIC COMPANY[1] & another[2] vs. DEPARTMENT OF PUBLIC UTILITIES. NSTAR ELECTRIC COMPANY vs. DEPARTMENT OF PUBLIC UTILITIES. WESTERN MASSACHUSETTS ELECTRIC COMPANY vs. DEPARTMENT OF PUBLIC UTILITIES. Suffolk. April 7, 2014. – September 4, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[3] Electric Company. Public Utilities, Electric company. Department of Public Utilities. Penalty. Administrative Law, Substantial evidence, Findings. Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on December 28, 2012. The cases were reported by Spina, J. Robert J. Keegan (Cheryl M. Kimball with him) for NSTAR Electric Company & another. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Massachusetts Electric Company & another. Christopher K. Barry-Smith, Assistant Attorney General, for Department of Public Utilities. GANTS, J. Three utility companies (utilities) challenge orders entered against them by the Department of Public Utilities (department) that impose monetary penalties for failing to “restore service to [their] customers in a safe and reasonably prompt manner,” in violation of 220 Code Mass. Regs. § 19.03(3) (2010), after electrical outages arising from Tropical Storm Irene (Irene) on August 28, 2011, and a snowstorm two months later on October 29 (October snowstorm). The utilities — Massachusetts Electric Company and Nantucket Electric Company, each doing business as National Grid (collectively, National Grid); NSTAR Electric Company (NSTAR); and Western Massachusetts Electric Company (WMEC) — claim on appeal that (1) the department made an error of law in failing to apply the prudence standard when assessing the utilities’ storm performances; (2) the department’s findings were not supported by substantial evidence; and (3) the department’s penalty calculations lacked the necessary subsidiary findings and constituted an abuse of discretion. We affirm in part and reverse in part. We conclude that the department applied the appropriate reasonableness standard in finding that the utilities violated their duty to restore service in a safe and reasonably prompt manner. We also conclude that the department’s over-all findings regarding National Grid and WMEC were supported by substantial evidence, as were its findings regarding the deficiencies of NSTAR’s communication with municipal officials and the general public, but that its finding that NSTAR failed timely to respond to priority two and three wires-down calls was not supported by […]
Categories: News Tags: 1015314, Company, department, Electric, Lawyers, massachusetts, Public, Utilities, Weekly
Kelso v. Kelso (Lawyers Weekly No. 11-107-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-694 Appeals Court JEFFREY M. KELSO vs. BARBARA KELSO.[1] No. 13-P-694. Middlesex. January 7, 2014. – September 3, 2014. Present: Katzmann, Fecteau, & Milkey, JJ. Res Judicata. Divorce and Separation, Findings. Practice, Civil, Motion to dismiss, Findings by judge. Abuse of Process. Libel and Slander. Emotional Distress. Civil action commenced in the Superior Court Department on June 18, 2012. A motion to dismiss was heard by Dennis J. Curran, J. Dana Alan Curhan for the plaintiff. David H. Locke for the defendant. KATZMANN, J. This appeal poses the question of the preclusive effect of a divorce judgment on a subsequent action in tort pertaining to related conduct. Following a trial, a Probate and Family Court judge issued a judgment of divorce with respect to the marriage of Barbara Kelso (Barbara) and Jeffrey M. Kelso (Jeffrey) on the basis of the irretrievable breakdown of the marriage.[2] About a year later, Jeffrey filed an action in the Superior Court against his former spouse seeking damages on the basis of four tort claims: abuse of process, defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. A Superior Court judge granted Barbara’s motion to dismiss, and Jeffrey appeals. We reverse. Background.[3] On June 19, 2009, Barbara filed a complaint for divorce in the Probate and Family Court, alleging cruel and abusive treatment. On the same day, a Probate and Family Court judge granted Barbara’s ex parte motion for a temporary order requiring Jeffrey to vacate the marital home. Jeffrey was required to vacate the house that day. The order also required that Jeffrey have no contact with Justin and Angelina, the children he shares with Barbara. On June 20, Father’s Day, Justin was staying at the home of Barbara’s sister, Gerri Abrahamian, and her husband, Fred Abrahamian. Jeffrey picked up Justin, took him for a haircut and to a park, and returned him to the Abrahamians.[4] Later that day he was arrested for violating the temporary order. On June 26, 2009, Jeffrey filed a counterclaim for divorce and a motion to vacate the temporary order. Following a hearing, the motion judge entered an order allowing Jeffrey to resume living in the marital home but requiring him to remain at least ten feet away from Barbara. Jeffrey resumed residence in the house. Three days […]